Donoso v Blacktown City Council

[2020] NSWDC 656

District Court

New South Wales

Medium Neutral Citation:

Donoso v Blacktown City Council [2020] NSWDC 656

Hearing dates:

30 October 2020

Date of orders:

30 October 2020

Decision date:

30 October 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraphs 53-54

Catchwords:

WORKERS COMPENSATION – application for leave to extend time to commence proceeding – work injury damages – explanation for delay

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), ss 72, 73

Workers Compensation Act1987 (NSW), ss 66A, 151D, 151H

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 78, 282

Cases Cited:

Brisbane South Regional Health Authority v Taylor 1996) 186 CLR 541

Gower v State of New South Wales [2018] NSWCA 132

Holt v Wynter (2000) 49 NSWLR 128

Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104

Category:

Procedural and other rulings

Parties:

Mr J Donoso (Plaintiff/Application)
Blacktown City Council (Defendant/Respondent)

Representation:

Counsel:
Mr J Dodd for the plaintiff/applicant
Mr A Combe for the defendant/respondent

Solicitors:
NSW Compensation Lawyers for the plaintiff/applicant
Sparke Helmore Lawyers for the defendant/respondent

File Number(s):

2020/125473

Publication restriction:

Nil

Judgment

BACKGROUND

1. This is an application by the plaintiff, as applicant, for leave to commence a proceeding, nunc pro tunc, against the defendant (respondent) under s 151D(2) of the Workers Compensation Act1987 (NSW) (‘the Act’).

2. The respondent put submissions which, if accepted, would incline the Court to reject the application.

3. The applicant is now 62 years old. He was born in Chile. From 1988 to 2011, he was employed by Bonds T-shirts as a machine operator and part time as a cleaner. He commenced employment with the respondent as a cleaner in October 2011.

4. By his Statement of Claim, dated 27 April 2020, the applicant seeks damages for personal injury which he says was suffered on 16 April 2016 in the Bowman Hall in the Civic Centre when he was a cleaner employed by the respondent. He asserts that he was injured in the course of moving a timber table from a stack of tables stacked vertically against a wall when another table in the stack fell over and struck him. He asserts that his physical injuries were to his left wrist (requiring surgery, but still manifesting symptoms), his left shoulder, head injury and surgical scarring.

5. The particulars of negligence stated are alleged to include a failure to warn the plaintiff of danger; a failure to take adequate precautions for his safety; and failing to provide a safe work place. Somewhat more specifically, it is alleged that the respondent had failed to secure the stack of tables, such as by providing cleats on the floor and failing to stabilize the stack of tables. Reliance is also placed on the alleged breach of an Australian Standard relating to the storage of material.

6. The heads of damages claimed in the Statement of Particulars include past loss of income (including damages under Fox v Wood principles and loss of superannuation benefits), and future loss of earning capacity.

7. The respondent filed a Defence on 26 May 2020, by which it disputes liability, denies the injuries and also pleads contributory negligence.

EXPLANATION FOR DELAY

8. The circumstances in which this application is brought are set out in an affidavit by the applicant, and also an affidavit in support of the application by the applicant’s solicitor, Mr Gabriel. Mr Gabriel has only been involved in relation to the claim since January 2019.

9. The applicant had been represented by Mr Gabriel’s firm, NSW Compensation Lawyers from 2 June 2016. Not long after the firm was retained, the applicant was relevantly advised that once his medical condition had stabilised it would be necessary for him to obtain medical evidence indicating the level of impairment as the prelude for making a lump sum claim for damages; and that if the impairment reached the level of 15% of Whole Person Impairment, he had an option to claim damages.

10. But on 13 July 2016, the plaintiff withdrew his instructions from NSW Compensation Lawyers; thinking that a union solicitor might be able to represent him free of charge. NSW Compensation Lawyers closed its file in October that year.

11. In October 2016, the applicant returned to work with the respondent on light duties.

12. The firm NSW Compensation Lawyers was re-engaged in April 2017. After sending out requests for evidence, the firm lodged an application with the Workers Compensation Independent Review Office (WIRO) on 7 June 2017 for funding to investigate a lump sum claim. That was approved on 15 June 2017.

13. In early November 2017, the applicant was examined by a neurologist, Dr Teychenne. It was suggested that radiological investigations be undertaken in relation to his neck, which occurred on 22 November 2017, and the applicant saw Dr Teychenne again on 6 December 2017.

14. Dr Teychenne’s report of 26 February 2018 was curiously only received on or about 30 May 2018. However, the neurologist provided an assessment of a 42% Whole Person Impairment with respect to a sensory deficit, that is, Complex Regional Pain Syndrome, in the left upper limb only. No other assessment was made with respect to other injuries.

15. The other assessments were made after a further funding request of WIRO had been approved in relation to the alleged injuries concerning the applicant’s left wrist/hand, his right hand, his neck, left shoulder and digestive system. But the approval of that funding only came through on 13 January 2019.

16. On 19 November 2018, the applicant’s employment with the respondent was terminated.

17. A report was received from Dr Dixon, an orthopaedic surgeon, on 4 April 2019. Dr Dixon provided an assessment of 26% Whole Person Impairment, which percentage was an aggregate of levels of impairment relating to the applicant’s left upper extremity, neck, upper GIT function and surgical scarring. That same day, a notice of a lump sum claim was served on the respondent, by which the respondent was notified of the plaintiff’s intention to proceeding with a lump sum claim.

18. By 16 April 2019, the s 151D limitation period had expired.

19. On 30 April 2019, Dr Meares, a hand, plastic and reconstructive surgeon, qualified for the respondent, considered that it would be difficult for the applicant to return to the workforce. This report supported the view that the applicant had Complex Regional Pain Syndrome in his left hand.

20. Dr Bentivoglio, a neurosurgeon, qualified for the respondent, also diagnosed Complex Regional Pain Syndrome, but also diagnosed degenerative disease of the neck and left shoulder tendinopathies.

21. On 1 May 2019, an amended lump sum claim was notified. The respondent’s solicitors, Sparke Helmore Lawyers, accepted service of the lump sum claim on 17 June 2019.

22. That same day, Mr Gabriel says he advised the applicant of the need to engage a liability expert and Counsel was briefed to prepare a work injury damages claim.

23. Later in June 2019, the applicant sought a vocational/functional assessment from Dr Horace Ting, an occupational therapist. Dr Ting’s report was received in the middle of October 2019.

24. On 24 June 2019, a s 66A agreement was reached with the respondent, quantifying a 47% Whole Person Impairment. This was notably higher than Dr Teychenne’s assessment. Counsel for the applicant also emphasised that to the extent that Drs Meares and Bentivoglio quantified Whole Person Impairments, those assessments had not been served on the applicant.

25. On 13 August 2019, the applicant conferred with Ms Sharon Todd, an ergonomic expert.

26. On 24 September 2019, Ms Todd expressed her opinion, which was relevant to liability. She ultimately concluded that the risk of injury to the applicant from an unsecured object falling was likely in the circumstances.

27. On 30 September 2019, Dr Ting reported on an assessment of the applicant on 28 August 2019. Counsel for the applicant emphasised his opinion as to the applicant’s prospective job options, in the light of certain barriers to employment.

28. On 21 October 2019, the applicant served the notice of the claim prescribed by s 282 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), which had been drafted by Counsel. This suspended time until 27 November 2019.

29. Between 29 October and 6 December 2019, correspondence was exchanged between the law firms for the parties culminating in the provision of further particulars of the claim. The respondent’s lawyers advised of requirements for the applicant to be assessed by the respondents’ specialists.

30. On 27 November 2019, the respondent served a s 78 notice of its decision declining liability.

31. On 31 January 2020, the respondent’s solicitors served the respondent’s Pre-Filing Statement and a draft pleading.

32. Between February and April 2020, the parties attempted to settle the proceeding through mediation but that attempt did not succeed. The proceeding commenced on 27 April 2020.

APPLICABLE PRINCIPLES TO APPLICATIONS OF THIS KIND

33. In Gower v State of New South Wales [2018] NSWCA 132, White JA (who delivered the leading judgment) said (at [186]) that the limits of the discretion to extend limitations periods were marked by the subject matter, scope and purpose of the relevant legislation. To that extent, recourse to earlier authorities concerning applications to extend limitations periods under different legislative regimes have to be treated with caution.

34. More significantly, His Honour placed an important qualification upon the guidance that may be offered in the exercise the discretion from the general principles in one of those earlier authorities, Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104. In Itex Graphix, the Court of Appeal had (at [87]) approved the formulation that the relevant test was what the “justice of the case” required. In Gower, White JA noted (at [186]), in terms that have salience to the applicant, that the operation of the legislative regime, and particularly the operation of section 151H of the Act, is antipathetic to the general rationales for limitation period identified in the High Court’s decision in Brisbane South Regional Health Authority v Taylor 1996) 186 CLR 541. This is so because the nature of an injury may be such that no proceeding can be brought for years after the event because the degree of permanent impairment cannot be ascertained. White JA (at [186]-[187]) said that where a statute imposes barriers against the bringing of claims that result in delay, leading to a loss of evidence, but permits leave to be given for the commencement of proceeding, the proper exercise of discretion is likely to be highly influenced by whether the claim is apparently meritorious and the degree of prejudice to the defendant. It is not imperative to refuse an application to extend the limitation period if the delay has resulted, or is presumed to have resulted, in the loss of evidence that affects the chance of a fair trial. That may, His Honour said, be the consequence in a particular case, but it is not an inevitable rule.

35. Simpson AJA generally agreed with White JA’s analysis in this regard (Basten JA was in the minority on this point). Her Honour emphasised (at [228]-[230]), that on the facts in that case, it was inapposite to say that the applicant had deliberately allowed the limitation period to expire when, due to the absence of evidence as to the relevant degree of Whole Permanent Impairment, the applicant could not realistically commence proceedings within the limitation period.

36. The observations of the Court of Appeal in Gower represent, with respect, the most recent exposition of the principles by the Court of Appeal that should guide the exercise of my discretion; and are particularly salient when it comes to my consideration of the adequacy of the explanation for delay. It remains the position that the other important remaining considerations concern whether there is any actual prejudice, beyond presumptive prejudice, to the defendant and the merits, such as they appear, of the applicant’s case.

PARTIES’ SUBMISSIONS

The applicant’s submissions

37. Counsel for the applicant focussed upon the developing assessment of the applicant’s medical condition. He referred the Court to the sequence of events by which the applicant obtained Whole Person Impairment assessments, initially, by Dr Teychenne, but then ultimately from other specialists. This culminated in an agreed Whole Person Impairment of 47% in June 2019.

38. Thereafter, in late September 2019, a report relevant to liability was obtained from an ergonomist, Ms Todd, and thereafter, the report of a vocational assessor, Dr Ting, which was relevant to a claim for damages for economic loss and future loss of earning capacity, which was also obtained in late September 2019. Within a month of receiving these reports, the applicant served notice of his claim. This was all fairly routine.

39. Further, the applicant took the step of notifying the respondent even before the expiry of the limitation period that a work injury damages claim and lump sum claim might be made. This expedient was identified as something that a worker might do in anticipation and mitigation of an employer’s later complaint of prejudice flowing from a lack of notice (Gower v State of New South Wales per White JA at [188]).

The respondent’s submissions

40. The respondent did not contest that it had not put liability in issue in its Pre-Filing Statement. Nor did it contest that it could not establish any actual prejudice; though it maintained that some prejudice could be presumed. Its sole point was that the applicant had not sufficiently explained in paragraphs 5-6 of his affidavit the delay from 13 July 2016, when the applicant withdrew the representation of NSW Compensation Lawyers until 20 April 2017, and when that firm was re-engaged, being a period of virtually 9 months. The respondent cited authority for the proposition that it was necessary for the applicant, on applications of this kind, to provide a “sufficient” explanation for delay (Holt v Wynter (2000) 49 NSWLR 128 per Sheller JA at [118]).

41. The respondent submitted that although the applicant had implicitly criticised the firm which was, at that point, representing him for not having done much for him and advising him to wait for about a year to proceed, that evidence was self-serving and unreliable. The applicant had waived privilege over communications to that effect, but had not produced any written advice to confirm this improbable recollection.

The applicant’s submissions in reply

42. The applicant submitted that it could be clearly inferred that the period of delay relied upon was explicable by the circumstance that the applicant’s medical condition had not yet stabilised, or, put another way, that the applicant had reached the stage of ‘maximum medical improvement’.

43. There was much activity to show that in the period alluded to by the respondent, the applicant’s medical condition had not yet stabilised.

44. In effect, it was submitted that whatever was the content of the advice supplied by the applicant’s lawyers during the period of delay was immaterial: he was in no position to conclude that he could bring a work injury damages claim and lump sum claim until November 2017, or even later, when he first obtained Dr Teychenne’s opinion.

CONSIDERATION

45. The proceeding commenced just over a year after the expiry of the limitation period. The applicant’s Counsel identified the period of delay as being in the order of 6 or 7 months. It is not an overly substantial period of delay.

46. The main considerations in the application, apparent from Gower, concern whether adequate explanation has been given for the delay (including whether the limitation period has been deliberately run down), the apparent strength of the case, and the extent of actual prejudice to the respondent (some prejudice being presumed). It is trite that the applicant carries the onus of proving the entitlement for leave.

47. As to the adequacy of explanation, I note that unlike the terminology deployed under ss 72 & 73 of the Motor Accidents Compensation Act 1999 (NSW) for claims brought outside the limitation period, where the relevant provision requires a ‘full and satisfactory’ explanation, which I interpolate imports a standard of some stringency, there is no similar express provision under s 151D of the Act. Plainly, though, the authorities in this area ordinarily require an applicant, who is requesting the Court to exercise a discretion in his or her favour, to explain why the proceeding was brought late.

48. In my view, it is selective to isolate only paragraphs 5-6 of the applicant’s affidavit as representing the entirety of the explanation. Although there is, as the respondent’s Counsel observes, a lacuna in the applicant’s affidavit, and although some doubt may attend the veracity of his recollections of what had occurred up to four years ago with his former solicitors, that circumstance does not undermine his application. The submission neglects the totality of the overall circumstances, as recounted in Mr Gabriel’s affidavit, including his multiple attendances upon a range of persons in the period of delay identified by the respondent in order to assess and treat him, being: a physiotherapist, Ms Lorraine (in October 2016), an orthopaedic surgeon, Dr Biggs (October and November 2016), another orthopaedic surgeon, Dr Gupta (September and October 2016, and January and February 2017), a pain rehabilitation specialist, Dr Ho (November and December 2016, and February and March 2017). There is force in the applicant’s submission that it was not until the applicant saw Dr Teychenne in November 2017 then reported in 2018, when his Whole Person Impairment was first assessed, that a person in this applicant’s position could practicably have formed a view that a work injury damages claim and lump sum claim was viable. There was no deliberative conduct in running down the limitation period.

49. Once that is accepted, then I also accept the submissions of Counsel for the applicant that there was no appreciable delay in the progression of the investigation of the applicant’s potential claim by his re-engaged solicitors from 20 April 2017, and no submission was made to the contrary.

50. As to the strength of the claim, in relation to liability, as indicated, the respondent did not contest that issue in its Pre-Filing Statement. As to the quantum of the claim, the report of Dr Ting, that was obtained in late September 2019, relevantly provided a platform for the claim of economic loss and future loss of earning capacity.

51. Counsel for the respondent disclaimed any suggestion of actual prejudice. Liability does not appear to be in issue. Further, as Counsel for the applicant noted, the respondent has long been on notice of the applicant’s medical history since the accident in 2016, including extensive radiological investigations back to a point proximate in time to when the work injury occurred, which suggests that if any prejudice is presumed, it is only slight and would not, at any rate, preclude the respondent from receiving a fair trial.

52. I am persuaded in the circumstances that leave should be granted.

ORDERS

53. I order that:

1. Pursuant to s 151D(2) of the Workers Compensation Act1987 (NSW), the plaintiff be granted leave to commence the proceeding, nunc pro tunc, as from 27 April 2020.

2. Costs of the Notice of Notion filed on 18 June 2020 are to be costs in the cause.

54. I also direct the parties to attend a case management conference before the Judicial Registrar on 6 November 2020.

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Decision last updated: 30 October 2020